Flag-Burning Law Would Save Stars 'N' Stripes Forever

WHY is Congress talking again about amending the constitution to ban desecration of the American flag?

Certainly, flag-burnings have not suddenly come into vogue. The American Legion, lead proponent of the amendment, has documented only six flag-burnings in the last year.

Yet legislation is working its way through both houses of Congress, with the greatest chance to date - especially now that Republicans run Capitol Hill - of gaining the two-thirds votes needed in both houses to send the amendment to the states for ratification. This week, the House Judiciary Committee approved the amendment on a party-line vote; the full House is expected to vote later this month.

An unflagging campaign

The current effort represents the culmination of a campaign that began five years ago, says Marty Justis, an American Legion official running the Citizens Flag Alliance, a pro-amendment coalition.

In 1989 and 1990, the Supreme Court overturned state and federal statutes banning the desecration of venerated objects as violations of free speech.

Since then, the American Legion has been building its case, commissioning Gallup polls showing overwhelming public support for an amendment protecting the flag. "We needed the irrefutable insistence of the people," says Mr. Justis, who says his organization has spent $3.5 million since January 1994 promoting the measure.

In addition, a state-level campaign has produced resolutions in 49 state legislatures calling on the United States Congress to send down an amendment for ratification.

The measure is popular with veterans and immigrants, especially those who fought or fled repressive regimes and who feel a personal connection to the flag's symbolism.

But even if the vast majority of Americans have no desire to desecrate a flag, the issue has been joined politically. The Clinton administration vehemently opposes an amendment, saying flag-burning is a nonissue that does not merit the first alteration of the First Amendment. Most Democrats in Congress agree. But the legislation has still garnered 70 Democratic House co-sponsors, including high-profile members such as Lee Hamilton of Indiana and Barbara Kennelly of Connecticut.

Opponents of the amendment speculate that some members are going along with it because it's easier than explaining their opposition. But civil-liberties groups have no trouble coming up with objections.

"The amendment doesn't define what 'desecration' is, which opens the door for 50 interpretations and lots of litigation," says Leslie Harris, director of public policy for People for the American Way.

Boxer shorts banned?

Open the latest J. Crew catalog, she says, and turn to the display of Independence Day boxer shorts festooned in an American flag motif. Ms. Harris wonders: Would this become unconstitutional?

Of course not, says Justis of the Citizens Flag Alliance. The amendment is aimed only at actual cloth flags suitable for flying, which, for example, could not be cut up and made into clothing. But clothes depicting American flags are not a problem, he says. Justis also says there are standard definitions of "desecration" and' 'flag" that would not leave courts guessing about how to uphold the amendment.